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Mozilla and other organizations today appealed the court ruling that upheld the Federal Communications Commission's repeal of net neutrality rules, arguing that the FCC's claim that broadband isn't telecommunications should not have been accepted by judges.

The FCC repeal was upheld in October by a three-judge panel at the US Court of Appeals for the District of Columbia Circuit. The court had some good news for net neutrality supporters because it vacated the FCC's attempt to preempt all current and future state net neutrality laws. But Mozilla and others aren't giving up hope on reinstating the FCC rules nationwide.

The Mozilla petition filed today asks for an en banc rehearing of the case involving all of the DC Circuit judges. Mozilla is probably facing an uphill battle because the three-judge panel unanimously agreed that the FCC can repeal its own net neutrality rules.

Further Reading

Joining Mozilla in the appeal were online companies Etsy and Vimeo, industry lobby group Incompas, and the Ad Hoc Telecom Users Committee, which represents business users of communications services. The case is known as Mozilla v. FCC.

Another appeal was filed today by several advocacy groups, namely New America's Open Technology Institute, Free Press, Public Knowledge, the Center for Democracy & Technology, the Benton Institute for Broadband & Society, the Computer & Communications Industry Association, and the National Association of State Utility Consumer Advocates. Another appeal was filed by the National Hispanic Media Coalition, and another by Santa Clara County, San Francisco, the California Public Utilities Commission, and the National Association of Regulatory Utilities Commissioners.

Mozilla's petition focuses on the FCC's reclassification of broadband as an information service and on the FCC's failure to properly address competition and market harm. We explain why we believe the court can in fact overturn the FCC's new treatment of broadband service despite some of the deciding judges' belief that Supreme court precedent prevents rejection of what they consider a nonsensical outcome. In addition, we point out that the court should have done more than simply criticize the FCC's assertion that existing antitrust and consumer protection laws are sufficient to address concerns about market harm without engaging in further analysis. We also note inconsistencies in how the FCC handled evidence of market harm, and the court's upholding of the FCC's approach nonetheless.

Judge blasted FCC but upheld repeal

Circuit Judge Patricia Millett, one of the three judges who decided the case, wrote that the FCC's justification for classifying broadband as an information service instead of a telecommunications service "is unhinged from the realities of modern broadband service." But the FCC has broad authority to classify offerings as either information services or telecommunications, as long as it provides a reasonable justification for its decision, and judges said they had to leave the net neutrality repeal in place based on US law and Supreme Court precedent.

Obviously, consumer advocacy groups are arguing that judges didn't have to give the FCC so much deference.

"Although the court came to the right conclusion on some key issues, such as the FCC's lack of authority to preempt state net neutrality rules, in other ways it gave the FCC the benefit of the doubt too many times," Public Knowledge Legal Director John Bergmayer wrote today. "While agencies should be given deference where appropriate, they do not have the authority to rewrite the law or come to illogical, results-driven conclusions."

Further Reading

The FCC argued that broadband isn't telecommunications because Internet providers also offer DNS (Domain Name System) services and caching as part of the broadband package. Millett wrote that this interpretation "confuse[s] the leash for the dog," but ruled in the FCC's favor because of the Supreme Court's 2005 decision in the Brand X case, which let the FCC classify cable broadband as an information service. Brand X "compels us to affirm as a reasonable option the agency's reclassification of broadband as an information service based on its provision of Domain Name System ('DNS') and caching," Millett wrote.

Circuit Judge Robert Wilkins agreed with Millett's assessment. Senior Circuit Judge Stephen Williams didn't join Millett and Wilkins in this line of criticism, but he joined them in upholding the repeal. Williams wanted to uphold the other big portion of the FCC order, too, as he dissented from a 2-1 decision to vacate the FCC's preemption of state laws.

The advocacy groups' petition argued that judges "misconstrued Brand X as precluding any judicial review of the reasonableness of classifying a service that overwhelmingly offers telecommunications as an information service simply because it includes DNS and caching."

If the court decides not to grant the request for a re-hearing of the case, petitioners could appeal to the Supreme Court.

The FCC could also appeal, since judges ruled against the commission on its attempt to preempt state laws. Today is the deadline for filing appeals at the DC Circuit court, and we'll update this story if the FCC submits one.

The FCC could also appeal, since judges ruled against the commission on its attempt to preempt state laws. Today is the deadline for filing appeals, and we'll update this story if the FCC submits one.

Hot take: The FCC does not want to appeal to the Supreme Court, because several of the conservative justices have made noises about overturning Chevron v. NRDC, and this case would provide a plausible vehicle for doing so. If SCOTUS actually does that, then half of the administrative state would be thrown into turmoil, and nobody knows where any of it would land.

It really does need to be hammered at the judges that it's not an information service.

Also trying to apply 2003 claims (litigated in 2005) to 2019 in tech is crazy.

for instance, in 2005 VOIP was just starting to go mainstream - now cableco's offer phone lines that are VOIP, as do most businesses now. I've had the same phone number for 11 years (352-6-KTETCH) which is a VOIP line, but i've gone through 5-6 different cellular devices and 3 landline numbers in that time.

In my day job, every bit of communicating is done using the internet, including every time i've spoken with my boss of 12.5 years... including when discussing the research data and how best to publish it, concerning Comcast's P2P sandvine screwing that started this chain back in 2007.

Hell, for the last 6 months you can't even activate a 3G phone on Verizon and htey'll all be shut off end of next year, while 4G was proposed... late 2004 with the first 4G phone coming out in 2010.

It really does need to be hammered at the judges that it's not an information service.

That's not really the issue. The judges' decision (at least, 2/3 of the judges' decision) was based on the premise that they're not even allowed to consider arguments about whether the Internet is a telecommunications service or an information service; they're required by precedent to defer to the FCC's expertise.

It really does need to be hammered at the judges that it's not an information service.

Also trying to apply 2003 claims (litigated in 2005) to 2019 in tech is crazy.

for instance, in 2005 VOIP was just starting to go mainstream - now cableco's offer phone lines that are VOIP, as do most businesses now. I've had the same phone number for 11 years (352-6-KTETCH) which is a VOIP line, but i've gone through 5-6 different cellular devices and 3 landline numbers in that time.

In my day job, every bit of communicating is done using the internet, including every time i've spoken with my boss of 12.5 years... including when discussing the research data and how best to publish it, concerning Comcast's P2P sandvine screwing that started this chain back in 2007.

Hell, for the last 6 months you can't even activate a 3G phone on Verizon and htey'll all be shut off end of next year, while 4G was proposed... late 2004 with the first 4G phone coming out in 2010.

While I don't disagree with the sentiment, the sad fact is that the FCC CAN repeal its own rulings, regardless of merit.

The monomolecular thin excuse that Internet is "information services" and not "telecommunications" is really arguing a moot point. The FCC punted oversight of the Internet to the FTC, which won't do shit about it.

NN really shouldn't be a regulatory ping-pong ball like it's been. It needs to be codified into law. The FCC can then oversee the implementation of the law, but they'd never be able to repeal NN again, since they have regulatory oversight of things, not legislative. But until it IS codified into law, there's not a lot that anyone can do to force the FCC into reinstating NN.

We can't have the FCC starting and stopping that shit every time the political winds blow in a different direction.

I told him that ISPs need to be classified as Utilities under Title II; that they cannot restrict the movement of data for the internet now is akin to electrical or water utilities. Information is not infrastructure and while an ISP may provide both, they cannot change the flow of data to make their content a higher priority.

Reese Cup boy had his moral and ethical cells removed so i doubt any words will move him, but I bet if someone offered him a shit load of cash, more than what he could get from AT&T he'd change his tune.

It really does need to be hammered at the judges that it's not an information service.

That's not really the issue. The judges' decision (at least, 2/3 of the judges' decision) was based on the premise that they're not even allowed to consider arguments about whether the Internet is a telecommunications service or an information service; they're required by precedent to defer to the FCC's expertise.

Which should be the right call: The agency is the expert on the issue, not the court. As long as the agency is working within the authority delegated to it by Congress, it shouldn't have to worry about the court sticking it's finger in the pot.

Of course, that assumes the people appointed to run the agency actually are there to run the agency and serve the people. The correct solution here isn't to get the court to interfere with the FCC - it's to vote out the elected officials who would put someone this corrupt in this high an office.

It really does need to be hammered at the judges that it's not an information service.

That's not really the issue. The judges' decision (at least, 2/3 of the judges' decision) was based on the premise that they're not even allowed to consider arguments about whether the Internet is a telecommunications service or an information service; they're required by precedent to defer to the FCC's expertise.

This.

I remember the article here after the decision, and I remember reading some of the quotes by the judges. They are actually really informed about the issue, and they have a remarkable understanding of exactly what's going on here.

But try and follow me on this. The job of the appeals court wasn't to decide if what the FCC did makes sense. Their job was only to decide if the FCC had the legal authority to do what they did.

Yes, the court knows that the FCCs reasons for doing so are weak. But the FCC did not do anything that they do not have legal authority to do based on legal precedent. That's all that matters. Until/unless someone can show that the FCC did not have the legal authority to do what they did, I don't see the decision being reversed. But who knows, maybe this new group thinks they have what it takes to do exactly that.

It really does need to be hammered at the judges that it's not an information service.

That's not really the issue. The judges' decision (at least, 2/3 of the judges' decision) was based on the premise that they're not even allowed to consider arguments about whether the Internet is a telecommunications service or an information service; they're required by precedent to defer to the FCC's expertise.

True dat.

Quote:

O, the Lord of Law on the Throne of Thought, A gilded impostor is he. Of shreds and patches his robes are wrought, His crown is brass, Himself an ass, And his power is fiddle-dee-dee. Prankily, crankily prating of naught, Silly old quilly old Monarch of Thought. Public opinion's camp-follower he, Thundering, blundering, plundering free. Affected, Ungracious, Suspected, Mendacious, Respected contemporaree! J.H. Bumbleshook

It really does need to be hammered at the judges that it's not an information service.

Also trying to apply 2003 claims (litigated in 2005) to 2019 in tech is crazy.

for instance, in 2005 VOIP was just starting to go mainstream - now cableco's offer phone lines that are VOIP, as do most businesses now. I've had the same phone number for 11 years (352-6-KTETCH) which is a VOIP line, but i've gone through 5-6 different cellular devices and 3 landline numbers in that time.

In my day job, every bit of communicating is done using the internet, including every time i've spoken with my boss of 12.5 years... including when discussing the research data and how best to publish it, concerning Comcast's P2P sandvine screwing that started this chain back in 2007.

Hell, for the last 6 months you can't even activate a 3G phone on Verizon and htey'll all be shut off end of next year, while 4G was proposed... late 2004 with the first 4G phone coming out in 2010.

While I don't disagree with the sentiment, the sad fact is that the FCC CAN repeal its own rulings, regardless of merit.

The monomolecular thin excuse that Internet is "information services" and not "telecommunications" is really arguing a moot point. The FCC punted oversight of the Internet to the FTC, which won't do shit about it.

NN really shouldn't be a regulatory ping-pong ball like it's been. It needs to be codified into law. The FCC can then oversee the implementation of the law, but they'd never be able to repeal NN again, since they have regulatory oversight of things, not legislative. But until it IS codified into law, there's not a lot that anyone can do to force the FCC into reinstating NN.

We can't have the FCC starting and stopping that shit every time the political winds blow in a different direction.

Also, all of this. And unfortunately, until/unless the second to last paragraph happens, the final sentence is likely what we're going to get.

It really does need to be hammered at the judges that it's not an information service.

That's not really the issue. The judges' decision (at least, 2/3 of the judges' decision) was based on the premise that they're not even allowed to consider arguments about whether the Internet is a telecommunications service or an information service; they're required by precedent to defer to the FCC's expertise.

Which should be the right call: The agency is the expert on the issue, not the court. As long as the agency is working within the authority delegated to it by Congress, it shouldn't have to worry about the court sticking it's finger in the pot.

Of course, that assumes the people appointed to run the agency actually are there to run the agency and serve the people. The correct solution here isn't to get the court to interfere with the FCC - it's to vote out the elected officials who would put someone this corrupt in this high an office.

Exactly. The SC precedent being cited by the appeals court isn’t that federal agencies get precedence over the judiciary because of their expertise. It’s that federal agencies get precedence IF the matter hasn’t been addressed by Congress or if it’s ambiguous, and this case more importantly, if the agency’s interpretation is reasonable. FCC’s “1+1=3” interpretation of what constitutes a “telecommunications service” is in now way reasonable. This should’ve been shot down immediately the first go around, if the judges were doing their jobs properly.

It really does need to be hammered at the judges that it's not an information service.

That's not really the issue. The judges' decision (at least, 2/3 of the judges' decision) was based on the premise that they're not even allowed to consider arguments about whether the Internet is a telecommunications service or an information service; they're required by precedent to defer to the FCC's expertise.

This.

I remember the article here after the decision, and I remember reading some of the quotes by the judges. They are actually really informed about the issue, and they have a remarkable understanding of exactly what's going on here.

But try and follow me on this. The job of the appeals court wasn't to decide if what the FCC did makes sense. Their job was only to decide if the FCC had the legal authority to do what they did.

Yes, the court knows that the FCCs reasons for doing so are weak. But the FCC did not do anything that they do not have legal authority to do based on legal precedent. That's all that matters. Until/unless someone can show that the FCC did not have the legal authority to do what they did, I don't see the decision being reversed. But who knows, maybe this new group thinks they have what it takes to do exactly that.

I largely agree with the above assessment (and I up-voted) but I do have a question about motive.

Aren't the Courts also granted ... and indeed, perhaps even tasked with ... the responsibility to assess the essential *Good Faith* with which an administrative decision or rule is made? I don't remember all the particulars of the specific case, but the Trump Administration's Department of Commerce was denied the privilege they sought to structure the 2020 National Census in a fashion that would intentionally result in an under-count of non-citizen immigrant populations in urban centers, thereby denying program funding and legitimate electoral representation when district reapportionment is undertaken.

If I recall correctly, the SCOTUS rejection of Commerce's appeal specifically called out the specious justification that Commerce offered up as the rationale for having undertaken their actions. Basically, the Roberts Court (and I believe Roberts authored) opinion declared Commerce's rationale to be utter B.S. and went on to state that if a legitimate rationale were offered that the changes Commerce sought may well be totally valid.

Am I mis-remembering, or perhaps simply wrong in my understanding that the Courts may legitimately assess motive? Pai's FCC has certainly twisted themselves in multiple knots in an effort to justify their intentional misfeasance, and I'd think that a team of good attorneys could present enough examples of their legalistic gymnastics to place their rationale in serious doubt.

It really does need to be hammered at the judges that it's not an information service.

That's not really the issue. The judges' decision (at least, 2/3 of the judges' decision) was based on the premise that they're not even allowed to consider arguments about whether the Internet is a telecommunications service or an information service; they're required by precedent to defer to the FCC's expertise.

Which should be the right call: The agency is the expert on the issue, not the court. As long as the agency is working within the authority delegated to it by Congress, it shouldn't have to worry about the court sticking it's finger in the pot.

Of course, that assumes the people appointed to run the agency actually are there to run the agency and serve the people. The correct solution here isn't to get the court to interfere with the FCC - it's to vote out the elected officials who would put someone this corrupt in this high an office.

Exactly. The SC precedent being cited by the appeals court isn’t that federal agencies get precedence over the judiciary because of their expertise. It’s that federal agencies get precedence IF the matter hasn’t been addressed by Congress or if it’s ambiguous, and this case more importantly, if the agency’s interpretation is reasonable. FCC’s “1+1=3” interpretation of what constitutes a “telecommunications service” is in now way reasonable. This should’ve been shot down immediately the first go around, if the judges were doing their jobs properly.

Exactly. If the specific matter in question is totally ambiguous in the law, such that any decision on the meaning is going to be essentially arbitrary, then I think it's reasonable for the court to defer to the agency's expertise on the matter, but this deference should not be so expansive that the agency can use some paper-thin convoluted reasoning to contradict the clear intent of the law like the FCC has done in this case.

(24) Information serviceThe term “information service” means the offering of a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications, and includes electronic publishing, but does not include any use of any such capability for the management, control, or operation of a telecommunications system or the management of a telecommunications service.

(50) TelecommunicationsThe term “telecommunications” means the transmission, between or among points specified by the user, of information of the user’s choosing, without change in the form or content of the information as sent and received.

(53) Telecommunications serviceThe term “telecommunications service” means the offering of telecommunications for a fee directly to the public, or to such classes of users as to be effectively available directly to the public, regardless of the facilities used.

The primary function of an ISP is to transmit IP packets of the subscriber's choosing to other Internet connected devices specified by the user. This is clearly within the definition of Telecommunication as defined by the law. An ISP offering that service to their customers is clearly a Telecommunication service. The legal definition of "Information service" includes a clause (which I highlighted in bold above) that seems to be explicitly there to counter the sort of argument that the FCC is using regarding DNS and caching.

This is not some marginal ambiguous case where the FCC is making a judgment call because the law is unclear. This is a clear case of the FCC using paper-thin arguments to contradict the clear definitions in the law.

It really does need to be hammered at the judges that it's not an information service.

That's not really the issue. The judges' decision (at least, 2/3 of the judges' decision) was based on the premise that they're not even allowed to consider arguments about whether the Internet is a telecommunications service or an information service; they're required by precedent to defer to the FCC's expertise.

Exactly. And I think Mozilla has gone down the wrong road here. What they really need to do is show that the FCC has abdicated its role and failed to fill its mandate. As such, the arguments then fall to the court because the FCC has failed in their duty.

This should be reasonably simple to do, considering FCC chairpeople and judges are on record as saying the FCC's decision makes no sense, and empirical data shows that the FCC has been making its projections and decisions based on faulty data. So if the FCC refuses to re-consider its decisions when presented with the facts, it has failed its mandate.

The FCC could also appeal, since judges ruled against the commission on its attempt to preempt state laws. Today is the deadline for filing appeals, and we'll update this story if the FCC submits one.

Hot take: The FCC does not want to appeal to the Supreme Court, because several of the conservative justices have made noises about overturning Chevron v. NRDC, and this case would provide a plausible vehicle for doing so. If SCOTUS actually does that, then half of the administrative state would be thrown into turmoil, and nobody knows where any of it would land.

i'm confused as to why anyone would want to overturn that since it sounds like that works in the governments favor and overturning it would create a circumstance where judges are given more leeway and have more rulings over-ruled based solely on political leanings.

also moonshark judge stephen williams, that overturning of the fccs authority to preempt state laws was almost a legal fait accompli. it was plainly apparent in the structure of authority that no one can over-rule what they themselves don't rule judge williams that was the most egregious bought dissent ive ever seen.

To be clear, and this is what the big telecoms wanted from the beginning, there is no telecommunications infrastructure anymore. It's *ALL* internet, despite telecoms expressly apply for, getting, and USING Title II subsidies and federal grants to build said infrastructure. They did this because they let all the old equipment rot and be replaced by internet-connected systems. Everything, even what you think is 'standard' telephone service, is over the internet.

All of this is just the end goal of their decades-long disinformation campaign and regulatory-collusion efforts to have their cake and eat it to. And, oh yeah, you paid them for all of it.